Subway-Surface Supervisors Assn. v New York City Tr. Auth.

[*1]
Subway-Surface Supervisors Assn. v New York City Tr.
Auth.
2010 NY Slip Op 52339(U) [30 Misc 3d 1210(A)]
Decided on December 16, 2010
Supreme Court, New York County
Scarpulla, J.
Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be
published in the printed Official Reports.

Decided on December 16, 2010
Supreme Court, New York County

Subway-Surface
Supervisors Association, Petitioner,

against

New York City Transit Authority AND JAY H. WALDER, AS
CHAIRMAN EX OFFICIO OF THE NEW YORK CITY TRANSIT AUTHORITY,
Respondents

106340/10

For Petitioner:

Levy Ratner, P.C.

80 Eighth Avenue

New York, NY 10011

For Respondents:

Martin B. Schnabel, Office of the General Counsel

130 Livingston Street, Room 1210

Brooklyn, NY 11201

Saliann Scarpulla, J.

In this Article 78 proceeding, petitioner Subway-Surface Supervisors
Association ("SSSA") seeks a judgment voiding stipulations of settlement entered into by
respondents New York City Transit Authority and Jay H. Walder, as Chairman Ex Officio of The
New York City Transit Authority ("Transit Authority") and Transit Authority supervisors Cherae
Ward, Lenoire Morgan, Kimberly Kearney and Renee Banks ("Supervisors").

SSSA is a labor union that represents certain Transit Authority employees, including the
Supervisors. Pursuant to a Memorandum of Understanding effective for the period of November
1, 2006 to January 7, 2010, SSSA and the Transit Authority agreed to extend the probationary
term for promotees working in the Division of Rapid Transit Operations from one year to two
years. In the spring of 2008, the Supervisors were promoted from hourly employees to
supervisory positions and their two year probationary term began. Shortly before the expiration
of their two year probationary periods, they each entered into a settlement agreement
("Stipulations") with the Transit Authority due [*2]to the Transit
Authority's finding that they each took excessive sick leave during their two year probationary
period. Because of their probationary status, they were not entitled to a disciplinary hearing
concerning the sick leave violations. They each agreed to serve a two year disciplinary probation
during which any violation of time and leave would result in dismissal.

SSSA now commences this proceeding seeking a judgment voiding the Stipulations, arguing
that (1) the Supervisors already served the maximum amount of probation and further extension
is not permitted pursuant to Title 55 of the Rules of the City of New York, Section 5.2.8; (2) the
Transit Authority failed to get written authorization to extend the probationary period from the
Commissioner of Citywide Administrative Services; and (3) even if further extension was
permitted, the length of the extensions in the Stipulations is impermissible.

In opposition, the Transit Authority submits an affirmation from its Acting Assistant Vice
President Christopher Johnson ("Johnson") and an affidavit from its Chief Officer, Special
Investigations and Review, Mark S. Neadel ("Neadel"). They maintain that during the
Supervisors' two year contractual probationary period, it was found that Supervisors had issues
with unsatisfactory attendance or excessive absenteeism. The Transit Authority determined that
those issues were serious enough to terminate the Supervisors' contractual probation, but decided
that they were in a range where the Transit Authority would be willing to give them a last chance
to salvage their promotions. As such, the Supervisors and the Transit Authority executed the
Stipulations, whereby the Supervisors agreed to a last chance settlement that would allow them to
keep their promotions by agreeing to a two year disciplinary probation. During that two year
disciplinary probation, any further time and leave violations would result in their dismissal
should the arbitrator find that they had committed such further violations.

The Transit Authority argues that the disciplinary probation referred to in the Stipulations
was separate and distinct from the probationary periods referred to in

Title 55 of the Rules of the City of New York and in the Memorandum of
Understanding. The probation set forth in the Stipulations was not an extension of any
probationary period, rather, it was a separate probation imposed for disciplinary purposes. The
Stipulations were written contracts of settlement of disputes and there is no evidence that they
were not freely entered into by the Supervisors.

Discussion

While SSSA correctly explains the rules relating to probationary periods as set forth in Title
55 of the Rules of the City of New York, Section 5.2.8, SSSA fails to submit any evidence to
support its argument that the probationary period set forth in the Stipulations constituted an
improper extension of the Supervisors' promotion probations. In contrast, the Transit Authority
submits the Johnson affirmation and Neadel affidavit to support its position that the Supervisors
executed the Stipulations in order to resolve their absenteeism issues by agreeing to a two year
disciplinary probation. No evidence was [*3]presented that the
Supervisors did not freely enter into the Stipulations, and in fact, they were each accompanied by
a union shop steward when they signed the Stipulations.

Further, SSSA argues, for the first time in its attorney's reply affirmation, that the shop
steward did not have authority to sign or even attend the signing of the Stipulations and that
SSSA therefore did not have the opportunity to represent the Supervisors at that time and is not
bound by the Stipulations. This argument is without evidentiary support. SSSA does not present
affidavits from the Supervisors, from any SSSA representative or employee, or from anyone else
with knowledge to indicate that the Stipulations were entered into improperly.

In accordance with the foregoing it is

ORDERED and ADJUDGED that petitioner Julius Vaughn's petition is denied and the
proceeding is dismissed; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment accordingly.